Saturday, March 31, 2018

Last week, the president’s personal lawyer, John Dowd,
resigned. On the surface, it doesn’t seem like a big deal. Nearly 40 Trump
Administration aids and officials have resigned or been fired since
inauguration day.

Recent revelation may signal that Dowd’s departure is a
bigger deal than originally thought. The New York Times reported this week that
Dowd discussed the possibility of a presidential pardon with lawyers for
Michael Flynn and Paul Manafort.

Flynn, the former national security adviser to the
president, pleaded guilty to lying to the FBI about conversations with Russia’s
ambassador. Manafort, a former Trump campaign manager, is charged in a “scheme”
in which he allegedly laundered $30 million, failed to pay taxes for almost 10
years, and used real estate he owned to fraudulently secure more than $20
million in loans.

The president has the authority to pardon anyone. However,
if the pardon is self-serving — an effort to muzzle potential witnesses in an
investigation involving the president — then that could be obstruction of
justice.

Fordham University Law School professors Jed Shugerman and
Ethan J. Leib recently wrote in the Washington Post that “the Constitution,
correctly understood, imposes limits on a president’s ability to grant pardons
if they are issued for the purpose of self-protection.”

Shugerman and Leib suggest the answer “lies in a neglected
part of the Constitution: Article II, Section 3, which directs that the
president “shall take Care that the Laws be faithfully executed.’“
If the president pardons Flynn and Manafort primarily out of a motivation to
protect himself, those pardons may be invalid as disloyal and federal courts
could allow those prosecutions to proceed even with a presidential pardon.

The “Take Care Clause,” as it is referred to, is also the
provision that provides the authority to prosecutors as appointees of the
president. The United States Supreme Court has ruled that prosecutors ”(A)re
designated by statute as the President’s delegates to help him discharge his
constitutional responsibility to ‘take Care that the Laws be faithfully
executed.’”

Ironically, the clause that could limit the president’s
authority to pardon is the very provision that provides the president the
authority to enforce the laws and exercise the executive branch of government’s
prosecutorial function.

Shugerman and Leib wrote, “Our Constitution’s designers
wanted public officials to be subject to the same kinds of fiduciary
obligations that CEOs, trustees and lawyers are routinely held to in the
private sector. Those duties prohibit self-dealing and acting under a conflict
of interest.

Therefore, “self-pardoning” or pardoning your closest
associates for self-interested reasons should not pass legal muster, because it
violates the fiduciary law of public office.”

Political pardons are nothing new, but using the authority
for self-dealing is.

President Gerald Ford pardoned Richard Nixon after he
resigned. Ford pardoned the man who made him president one month earlier. Ford
said he did it to end a “national nightmare.“
President Bill Clinton pardoned wealthy businessman Marc Rich in the waning
days of his administration after Rich’s ex-wife donated to Clinton’s legal
defense fund.

President George H. W. Bush said “honor, decency and
fairness” prompted the pardon of former Reagan Administration defense secretary
Caspar Weinberger, who was under indictment at the time for lying to Congress
during the Iran-Contra investigation.

During the Reagan Administration a federal court ruled, “The
prosecutorial function, and the discretion that accompanies it, is thus
committed by the Constitution to the executive, and the judicial branch’s
deference to the executive on prosecutorial decision-making is grounded in the
constitutional separation of powers.”

The Constitution provides the president with the authority
to faithfully execute the laws of the land and appoint prosecutors to carry out
that authority. The president also possesses the authority to relieve an
individual from the burden of prosecution or conviction. Both must be carried
out in good faith and with fidelity — absent the influence of personal
advantage.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.

Friday, March 30, 2018

U.S. voters support the death penalty for murderers
by a 58 to 33 percent margin, but they choose the option of life in prison with
no chance of parole, 51 to 37 percent, reports the Quinnipiac University
Poll. Quinnipiac says that was the first time a majority backed the life
without parole option since the poll first asked the question in 2004.

Democrats back the “life” option by 73 to 19
percent. Women back “life” 56 to 33 percent; among men, 45 percent back
the “life” option and 42 percent support the death penalty. Imposing the death
penalty for people convicted of selling drugs that cause a lethal overdose was
opposed, 71 to 21 percent. “It’s a mixed message on a question that has
moral and religious implications. Voters are perhaps saying, ‘Keep the death
penalty, but just don’t use it,” said Tim Malloy, assistant director of the
survey.

Thursday, March 29, 2018

Texas executed Rosendo Rodriguez on March 27, 2018. He was convicted of
murder for suffocating a prostitute, placing her lifeless body in a suitcase
and tossing it into a garbage dumpster in 2005.

Rodriguez, who just turned turned 38, was put
to death by lethal injection at the state’s death chamber in Huntsville, reported Reuters.

The execution was the seventh this year in the
United States and the fourth in Texas, which has executed more inmates than any
state since the U.S. Supreme Court reinstated the death penalty in 1976.

Attorneys for Rodriguez had filed a last-ditch
appeal to spare his life, seeking judicial review after they questioned the
integrity and findings of medical examiners in Lubbock relating to the autopsy
on the victim, Summer Baldwin, 29. The U.S. Supreme Court denied the appeal
less than an hour before the planned execution.

Texas argued the exact cause of Baldwin’s death as
determined by a medical examiner does not mitigate the fact that Rodriguez’s
actions directly led to her death.

The body of Baldwin, described by the Texas Court of
Criminal Appeals as “a drug-addicted prostitute,” was found in a suitcase in a
Lubbock landfill in September 2005. A police investigation found the suitcase
had been recently purchased and paid for by a debit card belonging to
Rodriguez, court papers showed.

Baldwin’s blood was later found in a hotel room
where Rodriguez had stayed. Rodriguez, later dubbed “the suitcase killer” was
arrested and confessed to police, prosecutors said.

In his last statement, he offered thanks to prison
staff and said the lives of his fellow death row inmates are worth knowing
about.

“Today is the day I join my God and father. The
state may have my body but not my soul,” Rodriguez was quoted as saying by the
Texas Department of Criminal Justice.

“Lastly, I want everyone to boycott every single
business in the state of Texas until all the businesses are pressed to stop the
death penalty,” he was quoted as saying.

In a police statement admitted at trial, Rodriguez
said he had sexual intercourse with the victim and placed her in a choke-hold
until she lost consciousness and had no pulse. He then purchased the suitcase,
stuffed Baldwin inside and threw the suitcase into a dumpster, prosecutors
said.

He also admitted to murdering Joanna Rogers, 16, in
2004, stuffing her body in a suitcase and throwing the it away, prosecutors
said. His death sentence was for Baldwin’s murder.

Jed Shugerman and Ethan J. Leib professors at the
Fordham University School of Law write about the limitations on presidential pardons for purposes of self-dealing.

If President Trump is counting on his pardon power as a way
of eluding special counsel Robert S. Mueller III, he is mistaken. He is
ignoring a core part of the Constitution that most of us have overlooked, too.
Most people assume that the president wields absolute authority to pardon
others and potentially even himself. However, the Constitution, correctly
understood, imposes limits on a president’s ability to grant pardons if they
are issued for the purpose of self-protection.

This is not because of some abstract notion of political
morality or a vague commitment to the rule of law. It is not
because of the maxim, “No one may be the judge in his own case,” because a
pardon is an executive action, not a judicial act.

Rather, the answer lies in a neglected part of the
Constitution: Article II, Section 3, which directs that the
president “shall take Care that the Laws be faithfully executed.”

Underscoring that directive is the fact that the only oath
whose precise formulation is detailed in the Constitution is the one taken by
the president: “I do solemnly swear (or affirm) that I will faithfully
executethe Office of President of the United States.” The Constitution refers
to many offices as “Office[s] of Trust,” invoking the legal concept of
trusteeship, but the president’s faithfulness is the one most explicitly
commanded by the document.

The language of faith here is no accident: The concept flows
from the Latin “fiducia,” meaning faith. Lawyers in the 18th century used the
phrase “faithfully execute” in legal instruments such as trusts to impose
duties of loyalty and care to others, and the phrase appears in many colonial
corporate charters and early state constitutions. The phrase “faithfully
execute” incorporates the president’s obligation to have fidelity to the best
interests of the people. Think of the common-law concept of fiduciary duty
applied to lawyers and agents, transplanted to the public sector. These
commitments are as foundational to constitutional law as they are to business
ethics and corporate law.

The framers imported the well-known fiduciary duty of
loyalty from the common law precisely to constrain the exercise of the
president’s powers under the Constitution. They used the language of faith and
trust to signal to courts and to officials that they were invoking well-known
commands of loyalty long recognized at common law. Our Constitution’s designers
wanted public officials to be subject to the same kinds of fiduciary obligations
that CEOs, trustees and lawyers are routinely held to in the private sector.
Those duties prohibit self-dealing and acting under a conflict of interest.

Therefore, “self-pardoning” or pardoning your closest
associates for self-interested reasons should not pass legal muster, because it
violates the fiduciary law of public office. If the president tries to pardon
himself, he is engaged in blatant self-dealing, transgressing both his oath and
the primary prohibition to which all fiduciaries are subject. If the president
pardons his associates primarily out of a motivation to protect himself, those
pardons would also be invalid as disloyal, and federal courts should probably
allow those prosecutions to proceed notwithstanding the pardon; indeed, even if
a president succeeds in releasing a pardoned criminal, a successor president
would not have to recognize an invalid pardon. The extent to which courts will
entertain these limits on the pardon power of the president is as yet untested
— but courts through the ages have directly enforced the fiduciary duties of
office against public servants. Ultimately, a president is not allowed to put
his own narrow interest over the public interest because he is constrained by
his oath and his office.

The “faithful execution” clause also has implications for
the president’s power to fire executive officials. The Constitution does not
explicitly mention a power to fire. This oversight had to be addressed in the
first Congress in 1789, and thereafter, the president’s unilateral power to
dismiss executive officials became a matter of judicial interpretation. Yet
while the presidential power to remove is, at most, implicit, the fiduciary
nature of the office is explicit. Therefore, firing a special counsel for
largely self-protective reasons would violate the president’s obligation to act
for only the right kinds of reasons. With strong enough evidence of motive or
purpose, a special counsel such as Mueller might even be able to obtain an
injunction to block such an impermissible firing.

To sustain our framers’ vision of a Constitution with
offices filled by public fiduciaries, we must find ways to enforce the
president’s oath and his legal responsibility of “faithful execution.” That
means executive powers that can sometimes look discretionary actually must be
limited by fiduciary principles. Thus, a president faithful to the
Constitution’s original meaning and faithful to the public, rather than his own
self-interest, may not legally issue self-dealing pardons, nor may he fire
executive officials largely to protect himself.

Wednesday, March 28, 2018

Since 2015, at least 47 Americans have shot friends, loved
ones, roommates, or emergency responders they said they’d mistaken for home
intruders, killing 15, according to an analysis of gun violence incidents
by BuzzFeed News and The Trace. In at least 27 of
those cases, criminal charges were dismissed or never filed because authorities
deemed the shootings accidental, an act of self-defense in a moment of panic.

For years, gun-rights advocates have promoted the use of
firearms by arguing that “to stop a bad guy with a gun, it takes a good guy
with a gun,” a refrain National Rifle Association executive vice president Wayne
LaPierre repeated in a speech in late February. Pro-gun media outlets,
like Bearing Arms, which has around two million followers on its Facebook page,
and Active Self Protection, which has more than three-quarters of a million
subscribers on its YouTube channel, highlight cases of armed civilians warding
off attackers. In the days following the February 14 shooting at Marjory Stoneman Douglas High School in Florida that
left 17 dead and 14 wounded, President Donald Trump and others called on school
districts to arm teachers for the safety of their students, an idea originally
proposed by the NRA in 2012 after the mass shooting at Sandy Hook Elementary
School in Newtown, Connecticut. “When a sick individual comes into that school,
they can expect major trouble,” Trump said of the proposal during a White House press briefing. “The bullets are going to be
going toward him, also.” Earlier this month, Florida passed a law allowing some
teachers to carry guns in the classroom.

But good guys with guns don’t only shoot bad guys with guns.
In the sudden, blurry, urgent split seconds when a threat bursts into view, the
impulse to pull the trigger can overwhelm the need to accurately identify the
target, leading to snap decisions that bring permanent tragedies.

A 2016 survey by researchers at Harvard and Northeastern
universities found that 63% of gun owners said that
self-defense was a primary motivation for owning a firearm — significantly more
than cited hunting or other sporting use. Sales data reflect this: Since 1994,
the number of long guns like rifles and shotguns — which are often used for
hunting — owned by civilians rose by 21% while the number of
handguns, more portable and easier to conceal, rose by 71%.

The national violent crime rate today is less than half of
what it was in 1994, according to FBI statistics, but the drop in crime has
barely altered Americans’ perception of their safety. A 2016 Pew Research
Center poll found that 57% of registered voters falsely
believed that crime had increased since 2008. Even as the threat of crime has
sunk, the demand for weaponized protection has soared. From 1998 to 2005, fewer
than one million pistols were manufactured each year in the United States;
since 2012, at least three million have been manufactured annually, according
to Department of Justice data.

Many of these handguns are in homes. Many never fire a
bullet into a person. But that can change in a flash.

Tuesday, March 27, 2018

In America, guns are a fact of life — and too often a cause
of death. In all, 38,658 people died from gunshots in 2016, reported the Boston Globe. Some were
murdered; others took their own lives. Some were killed by accident.

But none of them had to die.

Nearly 60 percent of those gun deaths were suicides.

About 37 percent were homicides.

Most of the rest were accidental or undetermined.

Massachusetts had the lowest gun death rate in the
country in 2016: About 3.5 per 100,000.

People killed by guns in Massachusetts represent a small
fraction of those killed nationally.

Many factors contribute to the prevalence of gun deaths.
Rates of gun ownership — also relatively low in Massachusetts — and factors
such as geography, education, and availability of health care all contribute.

Yet the death rate in Massachusetts is low not just because
of good hospitals and favorable demographics, but also because our laws foster
a more careful coexistence with guns.

If every state had the same gun death rate as Massachusetts,
some 27,000 lives could have been saved.

Our laws could and should go further, but they recognize
this much: Focusing on the cause of death — the weapons — is the best chance we
have to keep more people alive.

Saving lives is a choice. It’s a choice the people of
Massachusetts have made on a bipartisan basis, bit by bit, over decades. In the
wake of the latest in a long line of mass killings, people all over the country
appear ready to make similar choices. Some 67 percent of the country supports
tougher gun laws, the highest level of support in more than three decades.

Here are seven common-sense laws, all of which are consistent
with the Second Amendment, and all of which have been shown to make living with
guns safer.

If Pennsylvania had the same gun death rate as
Massachusetts, about 1,100 fewer people would have been killed by
gunfire in 2016.

Monday, March 26, 2018

There was yet another school shooting last week – this one
in Maryland. A school resource officer shot and killed the assailant after two
students were gravely wounded. This will further intensify the debate over
arming teachers.

President Donald Trump and the National Rifle Association
argued in the aftermath of the massacre in Parkland, Fla., that enabling
teachers to shoot back could save lives and could deter potential shooters from
entering a school.

Trump clarified that he believes only those “adept” at using
firearms should be armed not all teachers.

Teachers already are carrying concealed guns in a handful of
states, including Ohio.

The idea of arming teachers is rooted in the NRA rhetoric
that the only thing that can stop a bad guy with a gun is a good guy with a
gun. However, as America watched video footage from the Parkland shooting, the
good guys with guns stayed outside the building while the bad guy was firing
away.

School shootings

According to the Washington Post, since 2000 there have been
school shootings in 43 of the 50 states which have left about 250 students, and
teachers, dead. Even one student losing his or her life in, or around, a school
is a horrific tragedy.

Between 2002 and 2014, 6 percent of all gun-related deaths
involving children 17 and under were unintentional or accidental deaths.
According to The Journal of Pediatrics. the average number of children killed
by gunfire annually is about 1,300. That means in the 13 years between 2002 and
2014 about 1,000 children died as a result of accidental shootings, four times
the number of students intentionally killed in school shootings.

Therefore, bringing more guns into schools is not the
answer.

Recently, a teacher at a northern California high school
accidentally fired his gun inside a classroom, causing minor injuries to three
students.

The teacher, a reserve police officer “adept” at firearms,
was pointing the gun at the ceiling to make sure it was not loaded when it
discharged inside his classroom.

Accidents happen all the time in schools. However, an
accident with a gun can be fatal.

Written permission

In Ohio, a school board can give written permission to a
teacher to carry a firearm into a school.

Without written permission even a teacher with a
concealed-carry license must leave his weapon in the vehicle, according to Ohio
Senate Bill 199, passed in March of last year.

Austintown Superintendent Vince Colaluca told The Vindicator
this month that it is illegal to bring a firearm onto school grounds. An
exception to the rule is an armed police officer.

“You go into education because you want to help kids become
better citizens,” Colaluca told The Vindicator. “As long as we’re financially
capable to provide the protection, we’ll continue to do so.”

There are school boards in Ohio that have authorized
teachers to carry weapons but they don’t have to tell parents or the public.

“[S]chool boards do not have to publicize the fact that
they’re allowing teachers to arm themselves,” Sara Clark, legal counsel for the
Ohio School Boards Association, told the Columbus Dispatch. She said she is
unaware of an official list and couldn’t estimate how many of Ohio’s 610 public
school districts might allow teachers to carry weapons.

Free teacher training

Since 2013, the nonprofit, pro-gun, Buckeye Firearms
Foundation has been offering free firearm training specifically for educators.
On its website an essay is posted that provides, “Some kids need chemo. Some
need armed protection. The fact that both are “rare” events is of little
comfort when yours is the child in need.”

The fact that a child needs chemotherapy is devastating –
but other students are not at risk during treatment. More guns in school
increases the likelihood of an accident that can lead to a student’s injury or
death.

Matthew T. Mangino, a fromer district attorney in Lawrence
County, Pa., is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book”The Executioner’s Toll, 2010” was released by McFarland Publishing. You
can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino

Judy Malinowski may testify at the trial of her alleged
killer. Her murder resulted from an attack outside a gas station near Columbus,
Ohio, in 2015.

Police said they received multiple reports that a woman was
on fire in a parking lot. Witnesses say Malinowski and her boyfriend, Michael
Slager, were arguing. Slager appeared to douse Malinowski with gasoline and
then lit a cigarette causing Malinowski to burst into flames.

Upon arrival, police found Malinowski unable to speak,
suffering from severe burns. Her body was covered in powdered chemical residue
from a fire extinguisher.

Malinowski did not immediately succumb to her injuries.
Instead, she survived about 700 days with third and fourth degree burns over 80
percent of her body. She endured 52 surgeries and nearly two years in a
hospital. She died in January 2017 leaving behind two young daughters.

She left something else behind as well. She left behind her
testimony, under oath and subject to cross-examination to be used at Slager’s
trial for murder.

Although Malinowski was preparing to testify by video during
Slager’s trial for assault and arson, Slager short-circuited that plan when he
entered a no-contest plea to felonious assault and aggravated arson. A judge
sentenced Slager to a maximum 11 years in prison.

Malinowski wasn’t through and neither was Franklin County
prosecutor Ron O’Brien. O’Brien sought permission to perpetuate Malinowski’s
testimony. Her condition was not improving and her death was imminent.

The Sixth Amendment to the United State Constitution
requires that an individual charged with a crime have the opportunity to
confront the witnesses against him.

Confrontation means the opportunity to cross-examine
witnesses. In our adversarial system cases are decided by juries or judges who
have to make decisions about the credibility or believability of witnesses. The
best way to make that evaluation is to test the memory and veracity of
witnesses.

In Malinowski’s case there was no charge of murder because
she was still alive. However, when she died the state could go back and charge
Slager with murder even though he already pleaded guilty to a crime involving
the same conduct.

The Double Jeopardy clause of the Fifth Amendment only protects
defendants from twice being tired for the same offense. Although the conduct
that brought about her injuries was the same conduct that brought about her
death, the elements of each crime are different.

In 2004, the United States Supreme Court decided Crawford v.
Washington which has had a significant impact on the admissibility of victim
statements in court proceedings when the victim is unavailable or unwilling to
testify. In Crawford, the suspect was arrested and tried for assault and
attempted murder of his wife.

The victim refused to testify. The prosecution attempted to
use statements that she made to officers after her husband was arrested. The
Supreme Court held that the Confrontation Clause bars the government from
introducing statements at trial against a person without calling the maker of
the statement, and providing the defendant the opportunity to cross examine the
that person.

Here is where Slager’s case is different. Slager’s attorney
had the opportunity to cross-examine Malinowski while Slager watched the
deposition on close-circuit television. Slager had the opportunity to confront
his accuser.

An Ohio judge will soon decide if Malinowski’s testimony can
be used at the trial of the man accused of murdering her. The stakes are high.
Prosecutor O’Brien is seeking the death penalty. Although Malinowski’s
testimony meets the standards of the Confrontation Clause, there were no
charges pending against Slager when the deposition was taken.

Regardless of the outcome, Malinowski’s legacy of courage is
clear. Her tenacity to stand-up to her killer is unprecedented. The Ohio
legislature has acknowledged as much, her ordeal is the impetus for Ohio’s
“Judy’s Law,” which increases penalties for those who maim and disfigure their
victims. Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

The Philadelphia DAs office has taken on the ambitious task of examining cases where the conviction might be sound but the
punishment doesn’t fit the crime, reported the Marshall Project. That would mean poking into the sentences
sought by a previous generation of prosecutors whose reflexive stance, for
decades, was often to seek maximum charges carrying hefty terms behind bars.
“It might open the floodgates to reviewing thousands of sentences,” said Steven
A. Drizin, a law professor at Northwestern University and an expert on wrongful
convictions who said he supports sentence reviews.

Despite the daunting undertaking, the idea is gaining
traction. In Philadelphia, where former civil-rights attorney and public
defender Larry Krasner was recently sworn
in as district attorney, staffers are making plans for a sentence
review program, likely the first of its kind in the country. Nationally, nearly
two dozen newly elected prosecutors are working with an advocacy organization
called Fair and Just
Prosecution to implement their own sentencing-review procedures in the
coming year, said Miriam Krinsky, the group’s executive director and a former
longtime federal prosecutor.

Such a massive undertaking is, like many of the ambitions of
this new breed of prosecutors, far easier said than done.

Normally, courts allow a prosecutor to seek re-sentencing
only in limited circumstances, such as when new evidence arises or when
legislators pass a new sentencing law that needs to be applied retroactively.
For example, Maryland in 2016 revised its mandatory minimum sentences, with a
clause allowing judges to use those changes to reduce the time that
then-current prisoners were serving.

Sometimes, a prisoner can be rewarded with a reduced
sentence for cooperating in a police investigation. The compassionate
release process also lets corrections agencies and courts reduce
sentences retroactively, usually when the prisoner is gravely ill.

But there is no mechanism in many states for requesting a
new sentence for a current inmate simply because a newly elected prosecutor
says it’s in the best interest of justice.

Kevin S. Burke, a Minnesota state judge who was the
president of the American Judges Association, said many of his colleagues on
the bench would love to revisit old cases in which their discretion was
fettered by mandatory minimum sentence requirements. But they would still need
to have a clear reason, grounded in law, for reopening a closed prosecution.

“You have to actually find an error,” he said.

In Philadelphia, Patricia Cummings, head of the conviction
integrity unit, already has a workaround in mind. She said a group within the
DA's office focused on sentencing—which she would likely direct but that still
needs staff and funding—could start by looking into first- or second-degree
murder cases the office prosecuted in the past.

In Pennsylvania, a conviction on those charges automatically
ends in a sentence of life in prison without parole. More than 5,000 of the
state’s prisoners are currently serving these sentences, the second-highest
number in the nation, and about half are from Philadelphia.

Friday, March 23, 2018

One day after a dozen Republican legislators signed on to
proposed legislation to impeach Democratic
justices on the Supreme Court of Pennsylvania, Chief Justice Thomas Saylor
issued a statement calling their effort “an attack upon an independent
judiciary.

,” reported The Legal Intelligencer.

“As Chief Justice of Pennsylvania, I am very concerned by
the reported filing of impeachment resolutions against Justices of the Supreme
Court of Pennsylvania related to the Court’s decision about congressional redistricting,”
Saylor said in a statement released Thursday afternoon. “Threats of
impeachment directed against Justices because of their decision in a particular
case are an attack upon an independent judiciary, which is an essential
component of our constitutional plan of government.”

The statement came after 11 members of the Pennsylvania
House of Representativessigned on to co-sponsor four pieces of legislation
that by Rep. Cris Dush, R-Jefferson, proposed last month. The proposals
seek the impeachment of Justices Christine Donohue, Kevin Dougherty, Debra
Todd, and David Wecht. A fifth piece of legislation calling for the impeachment
of of Justice Max Baer has not yet received any support. All five of those
justices were elected as Democrats.

Dush’s proposals claim the justices engaged in
“misbehavior in office,” and were filed in response to the Supreme Court’s
decision to replace the 2011 congressional map after determining that it had
been unconstitutionally gerrymandered.

The court scrapped the map in January on a 5-2 vote, with
all five of the justices elected as

The comments from Saylor, who was elected as a Republican,
mark the first time the chief justice has spoken out about the
issue. During budget hearings before lawmakers in February, Baer, the
second justice in seniority, defended the court’s decisions.

Political experts recently
told The Legal it is unlikely Dush will be able to amass
sufficient political support to pass any impeachment resolutions. However, they
also noted that Republicans have a clear majority in the House, and, with
16 Democrats to 34 Senate Republicans, the GOP has more than the
two-thirds majority needed to remove the justices.

Thursday, March 22, 2018

Watch my interview on WFMJ-TV21 regarding the up coming
trial of Michael Slager in Franklin County, Ohio. To watch to
interview CLICK
HERE

Should murder victim's videotaped deposition be used
against suspect at trial?

On Tuesday, a Columbus area judge is expected to rule on
whether a victim can testify in her own murder trial.

It's a complex case, and it would be the first time in U.S.
history a homicide victim testifies from beyond the grave in this manner.

Judy Malinowski gave a deposition, or videotaped testimony
and was cross-examined by the defense about how she was doused with gasoline
and set on fire outside of a Columbus area gas station in 2015 by her
ex-boyfriend Michael Slager.

After enduring painful surgeries and spending 700 days in
the hospital covered with 3rd and 4th degree burns Judy passed away.

A Franklin County Judge will decide next week if her
deposition can be used at Slager's murder trial like testimony from beyond the
grave.

Matthew Mangino was the Lawrence County District Attorney
for eight years and feels this is an extremely interesting case.

"She's a witness, and her testimony has potential to be
presented to a jury. I can't imagine anything more powerful than that in
a criminal prosecution. She gave testimony under oath subject to
cross-examination in this deposition. Everybody who is accused of a crime
has the right to confront the witnesses against them and that's in the
Constitution," Mangino said.

Boardman defense attorney John Juhasz agrees, but after
doing some brief research discovered that this is actually a civil deposition
that was conducted of the victim.

"This is a civil deposition being considered for use in
a criminal trial and there may be strategically different questions you want to
ask in a criminal case," Attorney Juhasz said.

"I would question why the prosecutor didn't apply to take
a criminal deposition? After more than thirty surgeries he knew the
victim wasn't doing well. A criminal deposition guarantees confrontation
rights like a criminal courtroom and lessens the chance of reversible
error," according to Attorney Juhasz.

Noah Christiansen called his congressman’s
office last week while students across the country walked out of classes in
support of gun control, the Las Vegas Review-Journal reported.

In response, Amodei’s office called McQueen High
School, where Christiansen is a junior, to report “offensive, disrespectful and
vulgar comments,” which led to his suspension.

“It was quite sad to recognize that people think
that students’ opinion don’t matter and they feel the need to retaliate against
them,” Christiansen told the newspaper.

In response, the American Civil Liberties Union sent
a letter to Amodei’s office criticizing attempts to restrict Christiansen’s
First Amendment rights.

“As a member of Congress, you have sworn to uphold
and defend the U.S. Constitution, and you should know that people have the
right to criticize government officials, even if they use colorful language,”
the letter said.

Christiansen said he’s hoping for an apology from
the congressman, but Amodei said he shouldn’t expect one.

Wednesday, March 21, 2018

The National Rifle Association accused outgoing Florida
House Speaker and likely gubernatorial candidate Richard Corcoran of a
“betrayal” according to Politico, for his role in passing a gun control law for the first
time since Republicans won control of the Florida Legislature two decades ago.

“Speaker of the House Richard Corcoran (R) is adding insult
to injury by calling the betrayal of law-abiding firearms owners ‘one of the
greatest Second Amendment victories we’ve ever had,’” NRA lobbyist Marion
Hammer said in a legislative update sent to members and posted on the website of the NRA’s lobbying arm.

“One of the greatest Second Amendment victories we’ve ever
had,” she wrote again for emphasis, “NOT !!!!!!”

Hammer made clear that, though the law in question helps end
“gun free zones” at many public schools, she and the NRA do not believe that
the new three-day waiting period and 21-year age limit for long gun purchases
is justified.

The NRA sued over the age limits almost immediately after
Gov. Rick Scott signedthe Marjory Stoneman Douglas High School Public
Safety Act into law March 9.

Now the political consequences for Corcoran — anticipated by
the speaker, who had an A rating with the NRA — are coming to bear.
And political insiders say Hammer might just be warming up with Corcoran as she
considers whether and when to target the 57 Florida House Republicans and 18
Florida Senate Republicans who voted for the bill.

Tuesday, March 20, 2018

The US Supreme Court declined to hear a case challenging the
constitutionality of the death penalty in Arizona under the Eighth Amendment,
reported Jurist.

Abel Hidalgo was sentenced to death for two counts of first
degree murder in 2015. He appealed to the Supreme Court of Arizona, which upheld
the death sentence and found that the trial court properly denied Hidalgo's
motion alleging the unconstitutionality of Arizona's death penalty statute
without first holding an evidentiary hearing on the matter. At the end of 2017,
Hidalgo appealed to the US Supreme Court asking the court to decide whether
Arizona's death penalty statute is constitutional since it allows almost all
those convicted of first-degree murder to be eligible and whether the death
penalty in general violates the Eighth Amendment.

In a statement respecting the denial of certiorari,
Justice Stephen Breyer explained that the court declined to hear the case
because there was not enough evidence in Hidalgo's submission since the
evidentiary hearing was denied.

The court also decided that it had not been
adequately explained whether an empirical study would have been relevant or
helpful to resolving the question of the constitutionality of the death
penalty. In the closing paragraph Bryer wrote, "Capital defendants may
have the opportunity to fully develop a record with the kind of empirical
evidence that the petitioner points to here. And the issue presented in this petition
will be better suited for certiorari with such a record."

Monday, March 19, 2018

Quinta Jurecic and Benjamin Wittes write in The Atlantic
about the current situation in American governance. Are we in a constitutional crisis,
constitutional rot or constitutional infection?

The term “constitutional
crisis” gets thrown around a lot, but it actually has no fixed meaning.
It’s not a legal term of art, though lawyers and law professors—as well as
political scientists and journalists—sometimes use is as though it were. Saying
that something is a constitutional crisis is a little like saying that someone
is going through a “nervous breakdown”—a term which does not map neatly onto
any specific clinical condition, but is evocative of a certain constellation of
mental health emergencies. It’s hard to define a constitutional crisis, but you
know one when you see it. Or do you?

There have been various attempts to define the term over the
years. Writing in the wake of the impeachment of President Bill Clinton, and
the turmoil of the 2000 election, the political scientist Keith Whittington
noted the speed with which commentators had rushed to declare the country on
the brink of a constitutional crisis—even though, as he pointed out, “the
republic appears to have survived these events relatively unscathed.”

Whittington instead proposed thinking about constitutional
crises as “circumstances in which the constitutional order itself is failing.”
In his view, such a crisis could take two forms. There are “operational
crises,” in which constitutional rules don’t tell us how to resolve a political
dispute; and there are “crises of fidelity,” in which the rules do tell us what
to do but aren’t being followed. The latter is probably closest to the common
understanding of constitutional crisis—something along the lines of President
Andrew Jackson’s famous (if apocryphal) rejoinder to the Supreme Court,
“[Justice] John Marshall has made his decision, now let him enforce it.” Or, to
point to an example proposed
recently by Whittington himself, such a crisis would result if
congressional Republicans failed to hold Trump accountable for firing Mueller.

The constitutional scholars Sanford Levinson and Jack Balkin
more or less agree with Whittington’s typology, but add a third
category of crisis: situations in which the Constitution fails to constrain
political disputes within the realm of normalcy. In these cases, each party
involved argues that they are acting constitutionally, while their opponent is
not. If examples of the crises described by Whittington are relatively far and
few between—if they exist at all—Levinson and Balkin view crises of
interpretation as comparatively common. One notable example: the battle over
secession that began the Civil War.

These three categorizations help show what a constitutional
crisis could look like, but it’s not entirely clear how they apply to the
situation at hand. Whittington, Levinson and Balkin all agree that the notion
of a constitutional crisis implies some acute episode—a clear tipping point
that tests the legal and constitutional order. But how do we know this
presidency isn’t just an example of the voters picking a terrible leader who
then leads terribly? At what point does a bad president doing bad things become
a problem of constitutional magnitude, let alone a crisis of constitutional
magnitude? Indeed, it’s hard to see a crisis when the sun is still rising every
day on schedule, when nobody appears to be defying court orders or challenging
the authority of the country’s rule-of-law institutions, and when a regularly
scheduled midterm election—in which the president’s party is widely expected to
perform badly—is scheduled for a few months from now. What exactly is the
crisis here?

Another problem with thinking about America’s current woes
as a constitutional crisis involves the question of what comes next. That is,
assume for a moment we are in some kind of constitutional crisis. So what? What
exactly flows from that conclusion? Normally, constitutional conclusions imply
certain prescribed outcomes. When a president is impeached, for example, the
Senate must hold a trial to determine whether he or she should be removed from
office. When serving a second term, a president is not allowed to run for a
third term. But if one concludes that we are going through a constitutional
crisis, what happens next? The label doesn’t carry any obvious implication, let
alone an action item. If it has value, its value is descriptive. It carries
cultural and emotional weight but not much else.

Still another problem with the term is that the duration of
the crisis is not clear. Does a constitutional crisis take place over days,
weeks, or longer? Must it threaten in the immediate term to blow things up if
it doesn’t blow over or get resolved through some other process? (Think of the
Cuban Missile Crisis, only in domestic constitutional terms.) Or can a
constitutional crisis also take place in slow motion?

There’s a better term for what is taking place in America at
this moment: “constitutional
rot.”

Constitutional rot is what happens, the constitutional
scholar John Finn argues, when faith in the key commitments of the Constitution
gradually erode, even when the legal structures remain in place. Constitutional
rot is what happens when decision-makers abide by the empty text of the
Constitution without fidelity to its underlying principles. It’s also what
happens when all this takes place and the public either doesn’t realize—or
doesn’t care.

Balkin used the same phrase immediately after the firing of
James Comey to describe what he saw as “a
degradation of constitutional norms that may operate over long periods of time.”
Comey’s firing was startling, he argued, but not a constitutional crisis in and
of itself. The real constitutional change lay in the slow corruption of public
trust in government that had brought Americans to this point.

Rot, in Finn’s words, is “quiet, insidious, and
subtle.” It hollows out the system without citizens or officials even
noticing. And, as Balkin notes, though “constitutional rot” is distinct from
“constitutional crisis,” the former can lead to the latter. Slowly rotting
floorboards can suddenly give way to the hidden pit beneath. (Balkin uses a
similar metaphor of a rotten tree branch.)

There are clearly elements of rot in our current situation.
The evidence is everywhere. Ongoing violations, or attempted violations, of our
democratic norms and expectations, have become routine. The overt demands for
the politicization of law enforcement have intensified. A highly-politicized
media disseminates presidential propaganda. Congress tolerates it all. This is
consistent with constitutional rot.

But “constitutional rot” also has its limits as a way of
describing Trumpism. Rot, after all, is a one-way street—a process that can be
stemmed and slowed but cannot be reversed. Wood does not regenerate. Rotten
meat does not heal itself and become fresh again.

Yet in different ways, both Balkin and Finn imagine
constitutional rot as potentially reversible. Balkin’s solution is,
essentially, that we must elect different and better leaders in the
future—presumably before it’s too late to replace the floorboards. Finn takes a
different view, making the case that rot can be combated through the
development of an engaged and energized citizenry, one that cares about
preserving and maintaining constitutional values.

Even amid the constitutional degradation of this moment,
both of these rejuvenating mechanisms are very much in evidence. On a daily
basis, features of our democratic culture look more like antibodies fighting
off an illness than like the rot before an inevitable collapse.

Journalists have been relentless and ferocious and effective
in unmasking and reporting the truth—and news institutions have developed more
committed readership as a result. A broad democratic coalition of citizens is
mobilizing against Trumpism—most recently in a Pennsylvania congressional
district believed to be so solidly Republican that Democrats let the incumbent
run unopposed in recent elections. Other institutions, including the very FBI
that Trump is assaulting, are knuckling down and doing their jobs in the face
of pressure. This is not the stuff of a rotting democracy.

Trump can whine and he can fire senior FBI officials, but he
has been singularly ineffective either in getting the bureau to investigate his
political opponents (they have not yet “locked her up”) or in dropping the
Russia investigation, which continues to his apparent endless frustration. If
this is constitutional rot, it's inspiring a surge of public commitment to
underlying democratic ideals—including the independence of law enforcement.

What we are seeing, in other words, is a little more dynamic
than rot, a phrase that assumes we know the outcome. It’s more like constitutional infection
or injury. The wound may indeed lead to a crisis; it may become gangrenous. But
to describe the United States today as facing a constitutional crisis misses
the frenetic pre-crisis activity of the antibodies fighting the bacteria,
alongside the antibiotics the patient is taking.

We are definitely in a period of sustained constitutional
infection. The question is whether we can collectively bring that infection
under control before we face an acute crisis.

Sunday, March 18, 2018

An Alabama sheriff who is paid $93,000 a year was able to
pocket more than $750,000 from excess money in an inmate food fund over a
three-year period, thanks to a state law passed before World War II, reported the ABA Journal.

Sheriff Todd Entrekin of Etowah County revealed the
compensation on ethics disclosure forms filed with the state, AL.com reports.
He relied on a state law that says sheriffs may “keep and retain” leftover
prisoner meal money; many sheriffs in the state have interpreted the law to
allow them to personally keep leftover funds rather than turn the money over to
the county.

Entrekin and his wife own properties, separately or
together, that have an assessed value of more than $1.7 million, according to
AL.com. Their latest purchase, made in September, was a home in an upscale
neighborhood in Orange Beach, Alabama, for $740,000.

Two civil rights groups sued
49 Alabama sheriffs in January in an effort to learn whether they
personally pocketed leftover inmate meal money. The suit says that keeping meal
money for personal use creates a perverse incentive to spend as little as
possible on the feeding the inmates.

One person who questioned the quality of inmate meals was a
landscaper, 20-year-old Matt Qualls, who told
AL.com last month that Entrekin paid him to mow his lawn for several
months in 2015 using a check labeled “Sheriff Todd Entrekin Food Provision
Account.”

“A couple people I knew came through the jail, and they say
they got meat maybe once a month and every other day it was just beans and
vegetables. I put two and two together and realized that that money could have
gone toward some meat,” Qualls told AL.com.

Qualls was arrested four days after the story was published,
based on an anonymous tip about a marijuana smell coming from an
apartment, AL.com reported.
Officers from the Rainbow City Police Department and the Etowah County Drug
Enforcement Unit made the arrest. Rainbow City charged Qualls with marijuana
possession, while Etowah County charged Qualls with felony trafficking based on
the weight of marijuana-infused butter found in the apartment.

Qualls accepted a plea deal that lowered the trafficking
charge to first-degree marijuana possession, AL.com reported.
The charge will be dismissed if he successfully completes a drug court program.

Entrekin’s election opponent, Rainbow City Police Chief
Jonathon Horton, has pledged to use any excess inmate food funds for things
that will benefit taxpayers. “There’s been a tremendous amount of money left
over that shouldn’t be used as a bonus check,” he told AL.com.

Entrekin told AL.com in an email that the jail uses a
registered dietitian to ensure adequate meals are provided for jail inmates.
“As you should be aware, Alabama law is clear as to my personal financial
responsibilities in the feeding of inmates,” he wrote. “Regardless of one’s
opinion of this statute, until the legislature acts otherwise, the sheriff must
follow the current law.”

Saturday, March 17, 2018

President Donald Trump wants to impose the death penalty on
drug dealers. Death for drug dealers is the focus of a brutal campaign by
Philippines President Rodrigo Duterte whose “drug war” has, according to Human
Rights Watch, resulted in more than 12,000 extrajudicial deaths.

I’m not sure that Trump wants armed militia cruising the
streets, knocking-off reputed drug dealers, but is anyone ever really sure what
President Trump has planned?

In a recent campaign speech in Pittsburgh, President Trump
said, “These people are killing our kids and they’re killing our families, and
we have to do something.” He went on to say, “I think it’s a discussion we have
to start thinking about (the death penalty for drug dealers). I don’t know if
we’re ready — I don’t know if this country’s ready for it.”

However, if Trump intends to pursue the death penalty for
drug dealers through the criminal court system his idea may not be so
far-fetched.

The death penalty has been exclusively for those convicted
of first-degree murder since the death penalty was reinstated in 1976.

The Supreme Court cited evolving standards of decency to
outlaw the death penalty for the rape of an adult in 1977. In 2008, the court
found that there is a distinction between first-degree murder and nonhomicide
crimes against individual persons, even child rape.

U.S. Supreme Court Justice Anthony Kennedy wrote in 2008,
“As it relates to crimes against individuals, though, the death penalty should
not be expanded to instances where the victim’s life was not taken.”

According to the Death Penalty Information Center, an
anti-death penalty website, two states — Florida and Missouri — have the death
penalty for drug dealers on their books. The federal government also has the
death penalty for trafficking large quantities of drugs.

The Trump administration is studying a proposal that could
allow prosecutors to seek the death penalty for drug dealers as a way to
address the opioid crisis. Opioids killed nearly 64,000 people in 2016, and the
crisis is straining local health and emergency services.

According to the Washington Post, people familiar with the
discussions said that the president’s Domestic Policy Council and the
Department of Justice are studying the possibility of making trafficking large
quantities of fentanyl — a powerful synthetic opioid — a capital crime because
even small amounts of the drug can be fatal. The Trump administration’s
authority would be limited to federal law and the federal government has been
squeamish about executions. There have been only three executions by the
federal government in the last 55 years.

In 1972, the Supreme Court ruled that the death penalty laws
in place were unconstitutional because there were no rational, objective
standards for when the death penalty would be imposed.

Four years later, the Court found that Georgia’s amended
death penalty statute was “judicious” and “careful.” The new statute provided
for a bifurcated trial — one to determine guilt and one for sentencing. During
the sentencing, or penalty phase, specific jury findings of “aggravating
circumstances” were necessary to impose the death penalty. The Eighth Amendment
violations disappeared, and the death penalty was once again constitutional.

How would the death penalty look for a nonhomicide offense?

Once a defendant is convicted of drug trafficking the jury
would then move into the penalty phase of trial — juries must make death
penalty decisions — or impose some other penalty provided by statute.

The whole idea of imposing the death penalty on drug dealers
comes as interest in the death penalty wanes. There have been only 47
executions nationwide in the last three years. Support for the death penalty
has fallen below 50 percent for the first time in the modern era of the death
penalty.

Imposing the death penalty on drug dealers will be a
stretch, but probably has a better chance of happening than the erection of a
wall from the Pacific Ocean to the Gulf of Mexico.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book The Executioner’s Toll, 2010 was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.

Friday, March 16, 2018

Alabama executed a Michael Eggers a 50-year-old man convicted for
the kidnapping and murder of a woman in 2000, and Georgia put to death Carlton Gary, 67, dubbed the “stocking strangler" on March 15, 2018, reported Reuters.

Gary was convicted of a series of murders in
which he chocked victims with panty hose in Columbus, Georgia.

Gary was convicted in the murders of Florence Scheible,
Martha Thurmond and Kathleen Woodruff in Columbus in 1977 and 1978. He was also
linked to the murder of four other women in a two-year crime spree, police
said.

But Gary’s lawyers say evidence uncovered since his
conviction raised serious doubts about the prosecution’s case against him.

“Mr. Gary is not the Columbus Stocking Strangler,” his
lawyers wrote in their March 9 appeal to the U.S. Supreme Court.

Hours before the planned execution, they asked for a halt to
the proceedings to allow for DNA testing.

The killings in Columbus stopped in 1978 but Gary was not
arrested until 1984 when he was linked to a gun stolen in the home of one of the
victims. Prosecutors said they had a confession from Gary and fingerprint
evidence that implicated him in the crimes.

DNA testing of body fluids from crime scenes was not
available at the time and subsequent testing clears Gary, his lawyers said.

In neighboring Alabama, Michael Eggers was put to death by
lethal injection without complications at 7:29 p.m. CDT, state prison spokesman
Bob Horton said.

“Mr. Eggers was convicted of brutally beating and then
murdering Mrs. Francis Murray, who was simply trying to help him,” Alabama
Governor Kay Ivey said in a statement after the execution.

It was the first execution in Alabama since a botched lethal
injection a few weeks ago.

The two men, neither of whom gave a final statement, were
the fifth and sixth to be executed in the United States this year. Their
executions brought to 1,471 the number of inmates put to death since the U.S.
Supreme Court reinstated the death penalty in 1976.

Thursday, March 15, 2018

For years, the commutation of life sentences was a commonly
used tool to reduce a life sentence in Pennsylvania, reported In Justice Today. Milton Shapp, who was the
Democratic governor from 1971–79, commuted 251 sentences. As the war on crime
ratcheted up, however, the number of commutations plummeted. Republican Dick
Thornburgh, in office from 1979–87 and later picked as President Reagan’s
attorney general, commuted just seven. His Democratic successor, Bob Casey,
commuted 27. And commutations all but disappeared after 1994, when Governor
Casey commuted the life sentence of Reginald McFadden, who went on to kill two
and brutally rape another shortly thereafter.

“You met him, and you look into his eyes, you knew that he
was deranged,” Tyrone Werts, one of just five lifers to have their sentence
commuted under Governor Ed Rendell, said of McFadden when I was reporting my
2014 profile of Smith. “The system saw fit to let him go. But if they would
have came around to different prisons [and] said, ‘What do you think about
McFadden? You think that he’s a good candidate for commutation?’ ‘Hell no,
[don’t] let that crazy motherfucker out.’”

Why, during a law and order era, was such a seemingly
horrible candidate for a commutation one of the few to be released? The one
person who voted “no,” then Pennsylvania Attorney General Ernie Preate, told me
that McFadden was released in part because of his cooperation with correctional
authorities during a 1989 uprising at the State Correctional Institute at Camp Hill.
Back then, approving a recommendation of commutation to the governor required
just a majority vote. That would soon change.

McFadden’s atrocities humiliated then Lt. Governor Mark
Singel, who ran in 1994 to succeed Casey as governor and voted “yes” on his
commutation application. Republican Tom Ridge beat Singel, running on a
tough-on-crime campaign pitched to the maximally punitive political environment
of the mid-1990s. George W. Bush later appointed Ridge to be his Department of
Homeland Security secretary, calling him “a man of compassion who has seen what
evil can do.”

After taking the governor’s office, Ridge launched a special
session on crime, and legislators sent voters a successful referendum on
commutations: from there on out, the Board of Pardons seat once claimed by a
lawyer would go to a victim’s representative instead; more importantly, a
commutation recommendation to the governor for those sentenced to life in
prison would require a unanimous, and not majority, vote.

Wednesday, March 14, 2018

There is only one real question in the case of the State of
Florida vs. Nikolas Cruz: Will he be executed or will he serve multiple
life terms in prison, with no hope of ever being freed?

According to the Sun-Sentinel, the Broward State Attorney’s Office announced
that — at least for now — prosecutors plan to seek the death penalty for the
accused Parkland school shooter.

Some of the victims’ relatives immediately said they do not
want prosecutors to go through a lengthy trial to get a death sentence. They
would prefer if Cruz spends the rest of his life in prison.

Family members of at least one victim said that they felt
the announcement was premature and they wished prosecutors had consulted with
them before making a decision.

“I’m annoyed, I would have loved an opportunity to be
heard,” said Fred Guttenberg, whose 14-year-old daughter Jaime, was murdered.

“I wish they would have asked the families what they wanted
before they made that announcement,” he said. “We were under the impression
that, after the arraignment on Wednesday, we would have an opportunity to speak
with the prosecutors before a decision was made.”

Tuesday, March 13, 2018

Despite unrelenting criticism from the White House on the
course of the investigation into Russia's election interference, Deputy
Attorney General Rod Rosenstein offered unqualified support for special
counsel Robert Mueller.

"The special counsel is not an unguided
missile," Rosenstein said in an exclusive interview with USA TODAY.
"I don't believe there is any justification at this point for terminating
the special counsel."

Rosenstein's remarks are among the first to address Mueller's
status since it was disclosed more than a month ago that President Trump sought
to have the special counsel dismissed last summer. The president relented only
when White House counsel Donald McGahn threatened to resign if forced to carry
out the directive.

The deputy attorney general, who is tasked with overseeing
the special counsel, appointed Mueller last May to run the wide-ranging
investigation after Attorney General Jeff Sessions recused himself
because of his prior contacts with Russia Ambassador Sergey Kislyak.

Appearing upbeat and at ease in his fourth-floor office,
Rosenstein said oversight of the inquiry requires only "a
fraction" of his daily work. He estimated that less than 5% of his week is
related to briefings or other matters involving Mueller's investigation.

He dismissed the near-constant and pointed criticism aimed
at the Justice Department from the White House and from an ultra-conservative
Tea Party Patriots group. The group has run an ugly ad campaign,
describing Rosenstein as "a weak careerist" and suggesting that he
tender his own resignation.

"I believe much of the criticism will fall by the
wayside when people reflect on this era and the Department of Justice,"
said Rosenstein, who did not refer to Trump directly. "I'm very confident
that when the history of this era is written, it will reflect that the
department was operated with integrity."

Monday, March 12, 2018

A fairer trial system requires both transparency and a shift
of power away from prosecutors “into the hands of (impartial) sentencing
judges,” argue the authors of a forthcoming article in Missouri Law
Review, reported The Crime Report.

It isn’t an exaggeration to say the right to a fair trial in
the U.S. is close to a myth, when the fate of more than 90 percent of criminal
cases is determined by unrecorded conversations that take place in a courthouse
hallway, according to the article, entitled Plea
Bargaining: From Patent Unfairness to Transparent Justice.

The authors propose replacing the current U.S. system with a
model similar to one used in Australia, where judges have a high degree of
authority over sentencing, and where the high court has ruled that
prosecutors cannot even make a submission regarding an appropriate sentence.

The plea bargaining in U.S. courtrooms between prosecutors
and defense attorneys, which Justice Anthony Kennedy called “horse
trading,” isn’t really a “negotiation” at all due to the imbalance of
power on the side of prosecutors, wrote the authors–making a defendant’s
decision to plead guilty a rational choice, said the authors.

“The realities of the prison and the bail system, and the
nearly unfettered power reposed in prosecutors often applies considerable
persuasive force to those defendants who do not have the resources to get out
of jail on bail or take their cases to trial,” the article said.

In US courts, the judge is absent from the plea negotiations.
Unlike trials, there are no records of the bargaining process, which happens
outside the courtroom—in brief conversations between court appearances,
sometimes by email, and sometimes over the phone.

Though judges can later reject a defendant’s guilty plea,
“in reality, nearly all plea agreements are accepted by the courts,” wrote the
authors– because the courts know very little about the case, and are under
“considerable time pressures.”

The paper was written by Mirko Bagaric, Director of the
Evidence-Based Sentencing and Criminal Justice Project, Swinburne University
Law School; Julie N. Clark, of Melbourne Law School; and William Rininger, of
the University of Akron School of Law.

They propose establishing a sentencing discount of up to 30
percent to all offenders who plead guilty. Where the prosecution’s case is
weak, and a defendant is “tenably innocent,” they should receive a discount of
up 75 percent. This will reduce both incarceration levels and discrimination in
sentencing, they argue.

Saturday, March 10, 2018

Prison inmates age at an accelerated rate when compared to
people living outside the prison walls. The health of a 50-year-old person in
prison is comparable to the health of a 65-year-old. That is not a good thing,
especially when you consider nearly every state and the federal government are
seeing an increase in elderly prisoners.

According to The Pew Charitable Trust, in Virginia for
instance, 822 state prisoners were 50 and over in 1990, about 4.5 percent of
all inmates. By 2014, that number had grown to 7,202, or 20 percent of all
inmates.

The aging population and increasing number of inmates with
chronic health conditions in prisons have led states and the federal government
to adopt measures that could result in the compassionate release of some of
those prisoners.

Unfortunately, the release of ailing inmates has been
anything but compassionate. Due to the slow and cumbersome nature of the
process and high denial rates, many infirm and terminally ill inmates die
waiting on decisions.

According to a recent investigation by The Marshall Project
and the New York Times, from 2013 to 2017, the Federal Bureau of Prisons
approved six percent of the 5,400 applications for compassionate release, while
266 inmates who applied died in custody awaiting a decision.

Congress created compassionate release as a way to release
certain inmates, such as the terminally ill, when it becomes “inequitable” to
keep them in prison any longer. Supporters view the program as a humanitarian
measure and a sensible way to reduce health care costs for ailing and elderly
inmates who pose little risk to public safety, reported the Times.

In 1984, the federal government abolished parole. Instead of
indeterminate sentences, with a minimum and maximum, the feds adopted
determinate sentencing or a flat sentence of specific duration. After
abolishing parole, according to the Times, Congress created compassionate
release as a safety valve, giving judges the power to retroactively cut
sentences short in “extraordinary and compelling” circumstances.

A 2015 study entitled “The United States Compassionate and
Geriatric Release Laws,” found of the 50 states, District of Columbia and
federal government 47 have some legal procedure or precedent for incarcerated
people or their families to petition for early release based on advanced age or
health. Only five corrections systems — Illinois, Massachusetts, South
Carolina, South Dakota, and Utah — do not have statutory schemes for early
release.

California is one of those states with compassionate
release. Inmates who are terminally ill and have six months or less to live, or
those inmates who are incapacitated or in a vegetative state and require
24-hour skilled nursing care, are eligible.

According to the Monterey Bay Justice Project, during a
period of 12 months between 2016 and 2017, in California’s only correctional
hospice unit, 53 qualified inmates applied for compassionate release. “We had
six granted but some died before release,” said Reverend Keith Knauf, director
of Pastoral Care in the Hospice Unit.

The failure to utilize compassionate release to its full
potential has particular importance today.

The U.S. prison population continues to age — the number of
prisoners age 55 or older has more than doubled, while at the same time the
overall prison population has declined by three percent.

At the same time, older prisoners generate about three to
nine times the cost of younger prisoners, as national prison costs have
exceeded more $80 billion a year.

Compassionate release is not only economically sound it is
morally the right thing to do. Terminally ill, handicapped and infirm inmates
are generally not a threat to society and although they have been convicted of
a crime they are entitled to some dignity as they, and their families, deal
with the anguish of failing health and the end of life.

Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

Friday, March 9, 2018

President Trump has advocated for arming teachers in
the wake of the Marjory Stoneman Douglas High School massacre. After the
slaughter at Sandy Hook some argued that an armed teacher or principal would have
prevented the horror.

At the time, the National Rifle
Association’s Wayne LaPierre called for armed
security guards in every school in the nation. “The only thing that stops a bad
guy with a gun is a good guy with a gun,” he said, sparking a furor and a
national debate that continues today.

According to the Baltimore Sun, Maryland’s lone Republican in Congress, Rep. Andy
Harris, recently echoed LaPierre: “I have no problem letting [teachers] carry a firearm
in a school building because, honestly, the way you stop a bad guy with a gun
is a good guy with a gun."

Several years ago 36 law enforcement professionals offered
their perspectives on arming teachers during a roundtable discussion at Johns
Hopkins University.

They came up with 22 assumptions that people,
including public officials, make to support the potential effectiveness of
armed teachers. To stop a school shooter, the Hopkins roundtable participants
found, a teacher would have to:

Be adequately trained to use a gun in a
crisis.

Be near the shooting or able to get
there in time.

Have adequate time to “size up” the
situation.

Have “clarity of focus/clarity of
thought” about approaching the shooter.

Have a handgun “ ‘at the ready,’ near
hand, or in hand when needed.”

Quickly remove the gun from a safety
holster.

Remember to unlock the weapon.

Remember to load the weapon.

Remember to “chamber a round (if a
semi-automatic weapon is used).”

Be left alone to confront the shooter
and not engaged in helping students in some other way during a crisis.

Shoot quickly and accurately.

Shoot accurately while moving.

Have “a ‘clean’ shot at a ‘clear’
target.”

Have a line of fire that does not
jeopardize students or others.

Have “sufficient momentary cover to
enable the shot(s).”

Be faced with only one assailant.

Hold on to the weapon if forced into a
“close combat” situation.

Other assumptions:

The shooter would stand still long
enough for the teacher to get a clean shot.

The shooter would not see the teacher or
react aggressively.

If shot, the shooter would die
instantly.

Police officers responding to the scene
would not mistake the armed teacher for the shooter.

The teacher would not mistake a
responding plainclothes officer for the shooter.

That’s a long list of assumptions and best-case
conditions adding up to an altogether weak case for arming teachers.

There are other factors highlighted by the Hopkins
roundtable and a review of numerous studies:

“Despite their training and frequent exposure to
high-risk and life-threatening events, evidence shows that police officers do
not shoot accurately in a crisis encounter.” If police officers have trouble
shooting straight, what do we expect from people whose primary focus is
teaching social studies?

The potential dangers of having guns in classrooms:
Teachers faced with a crisis might use lethal force when not warranted;
students might gain access to a gun.

Of the 36 who participated in the Hopkins
roundtable, only five saw any merit to arming teachers, but even they
acknowledged that teachers were unlikely to perform well in a shooting
encounter.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.